measures so that assisted reproduction treatments will be covered by State health care
programs and policies.
256. The Court considers that, even though there are few specific legal regulations on IVF,
most of the States of the region allow IVF to be practiced within their territory. This means
that, in the context of the practice of most States Parties to the Convention, it has been
interpreted that the Convention allows IVF to be performed. The Court considers that this
practice by the States is related to the way in which they interpret the scope of Article 4 of
the Convention, because none of the said States has considered that the protection of the
embryo should be so great that it does not permit assisted reproduction techniques and, in
particular, IVF. Thus, this generalized practice 416 is associated with the principle of gradual
and incremental – rather than absolute – protection of prenatal life and with the conclusion
that the embryo cannot be understand as a person.
C.4) The principle of the most favorable interpretation, and the object and purpose
of the treaty
257. In a teleological interpretation, the purpose of the norms involved is examined and,
to this end, it is pertinent to analyze the object and purpose of the treaty itself and, if
relevant, the purposes of the regional protection system. Thus, there is a direct relationship
between the systematic and the teleological interpretations. 417
258. The precedents examined so far allow it to be inferred that the purpose of Article
4(1) of the Convention is to safeguard the right to life, without this entailing the denial of
other rights protected by the Convention. Thus, the object and purpose of the expression “in
general” is to permit, should a conflict between rights arise, the possibility of invoking
exceptions to the protection of the right to life from the moment of conception. In other
words, the object and purpose of Article 4(1) of the Convention is that the right to life
should not be understood as an absolute right, the alleged protection of which can justify
the total negation of other rights.
259. Consequently, it is not admissible that the State argue that its constitutional norms
grant a greater protection to the right to life and, therefore, proceed to give this right
absolute prevalence. To the contrary, this approach denies the existence of rights that may
be the object of disproportionate restrictions owing to the defense of the absolute protection
of the right to life, which would be contrary to the protection of human rights, an aspect
that constitutes the object and purpose of the treaty. In other words, in application of the
principle of the most favorable interpretation, the alleged “broadest protection” in the
domestic sphere cannot allow or justify the suppression of the enjoyment and exercise of
414
Expert witness Zegers-Hochschild stated that, even though Chile “has not formally discussed the coverage
of infertility treatments at the legislative level; nevertheless, the Government has allocated special financial
resources to the National Health Fund to cover ART treatments to a growing number of women with limited
means.” Written summary of the expert opinion provided by Fernando Zegers-Hochschild at the public hearing
before the Court (merits report, volume VI, folio 2824).
415
Cf. Bill “Assisted reproduction techniques” approved by the Chamber of Representatives on October 9,
2012, and currently being examined by the Senate’s Public Health Committee. Available at:
http://www0.parlamento.gub.uy/indexdb/Distribuidos/ListarDistribuido.asp?URL=/distribuidos/contenido/camara/D
20120417-0218-0997.htm&TIPO=CON (last visited November 28, 2012).
416
Article 31.3 b) of the Vienna Convention establishes that: “[t]here shall be taken into account, together
with the context: any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation.”
417
Case of González et al. (“Cotton field”) v. Mexico. Preliminary objection, merits, reparations and costs.
Judgment of November 16, 2009. Series C No. 205, para. 59.